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HomeMy WebLinkAboutDocumentation_Special Meeting_Tab 02_12/08/2005r VILLAGE OF TEQUESTA MEETING AGENDA ROUTING SHEET MEETING DATE: .1.~ {,C , g, zvv,,r AMENDED MEETING DATE: S'~~ClGt~ L~. xeepf~0i~ , COVER MEMO ATTy,ACHED: ~ `~ ®~~ J Rio RESOLUTION OR ORDINANCE NUMBER:'-{a ire w~ou 5 ~ 3rc~~-~-Q~ ~~''' ~' '~ SUBJECT: L~oY, ~iaHa fia~-i ~ U l ~i ed ~a~i'fa ~ ~ L~wela ~a ~•, eht f7tlc~~ fi_Y ~ ORIGINATING DEPARTMENT: ~o~, ~ ~ h ~ ~y .l~~Gtohf,,,e„7`~ DEPARTMENT HEAD APPROVAL ~/ T FUNDING SOURCE: 2005/2006 BUDGET ACCOUNT NUMBER: CURRENT BUDGETED AMOUNT AVAILABLE: $ AMOUNT OF THIS ITEM: $ BUDGETED BALANCE REMAINING: (PIGGYBACK CONTRACT NAME AND # OR COMPETITIVE BID FOR ANYTHING OVER $10,000 -ATTACH 3 BIDS) APPROVALS: FINANCE DIRECTOR VILLAGE MANAGER VILLAGE ATTORNEY (if Needed) Yes No PLEASE RETURN TO VILLAGE CLERK TO PLACE ON THE AGENDA ~S6=d I@@ ~ ~Jtid ~ DI ~ Xti~ WdZ17 ~ b0 S00Z-90-~3a L~vvl~, ~.o~ ~ n~~ N ~~W~~.~, P.~ ATTORNEYS AT LAW ~~lr4:l~,l,t~, S~ta7pe 1"/tr);tlu~: ~'ttlul'c~,~(~d deceived Date: ll(;cemher b, 2005 T~: Scott G. Hawkins Telecopy Number: cc: Michael CUIJG'G2) Telec~py Number: Ail Council Memhers Fages: l ~ (N(~. ()f P~gcs including covcrshcet) 650-t)4.3G (561} 575-G2U3 Nichol~ti A. Mastroianru Tclccopy Number: ~Sf 1 j 749-(}061 Cheri Pavlik. Subject; Village of Tequesta Ordinance ;390 Mcssa~e: Plcxse see attached, THF. INFY)I2MATIUN CONTAIN!~U IN'IlI1S'1'E[1i('C)NY MfiCSA(iF.IS ATTC)RKRI'/('i.IFNT PRNILCt~Til7 AN)) (X)N171)t:N')'lAL INFORMATION W'I'ENDFD uNLY l~)H THF. IJSF nFTHE WulvIUUAL UK ENTITY !;AHED ADOVE. IP TIIE RE.4DGR OF Tl-115 ME55ACiE IS NV'!"It-1>r IN"l'r"NC)6G RF.~r~IFNT, Y()lJ .4RE HEREUY NOTIf1Csf7'1YtAT ANV f)1$$F.,~IINA'ilC)N• 1)IS11t1B1~1'!UN UR CUPYllV(i UP'1'HlS COMMUNICATit)IV IR SiR)C'Ti.Y PROHIIIR'ED. 6~ YUU HnvE kE(;EIygD'ITi1S C()hiMIRVICAT10N IN ERRDR. PLEASE IMn(Ei)14'ItLY No'I'1rY US BY'fELEPMUNE. tWp RF,'1'IfKN TFIC (7RIGIYAL MESSAtiE 'ff1 UC ~TTHC A13()vlrAl)URE55MA TiIII i'C)STAL CLRVIC:r. 'THANK YQ[I. ICµuLlenn wilt lnursuussiuir uc~~r. plrux c:dF rtrrrdrrrtarr Jar:~surrnille fv!r) 7nA•a0~ln (9Q-J) 7~7•?I/2n 1~t1S ~ (adr ~ ~nti..rn?J r•itr~ f.9nJ) ~s7•_t~v AMY M. DUKES, ESQUIRE 7700 Palm Dcach Caitcs Blvd. DEC 01 2005 .Smite ID00 Wes•r. Prrlm Bear,•k, Fluriria 33401 ~ 1 ~ 3 ~ ~ E3 ~! (,~ C' ~ ~ ff (i'~ 1) fi4U-Ui~s7l.'1 ~ F rfx {SCi 1) fi40-ti202 Cnnract Person: Marilyn. AyulCr 'I'E;LI~CC)1'Y (:l)VIE;lt SHlE;1N:l' CI ientlMatter Na. 2424-003 '! ullrrhrrs~'re H t'sr Palm irertrk (85n.i 232-s7t~? {.5nr- bdrl-~S?0 1'irr: (Ni(fl hJ,4;;J1 F'rti ~ (Stll rid/1-N?fl' L~Z~Z'd ~0z9SZSt9S~~l :wo.rd Zb:9T S00Z-90-~3Q %S6=2i Z00:3Jt1d :DI :Xd.~ WdZb:bO S00z-90-930 .-: •.:: ~t~ - :'.: .- iy,~`- 1 LEWIS, LC)NGMAN & WALKER, P.A. n i r t: w ra r r~ n l i n ti• llecember h, ?t)()S Scott Ci. Hawkins, Esyuin; Tones, Foster, Johnston & Stubbs 5Q5 S. F1lglcr I7rivE, Suite 11UU 'vest Paltn Beach, FI. 33'4Q 1 De1r Scott; RE: Village ulf Teuuesla Ordiztartce 3~U Rep1 v Tu: Went Palm Bt3ch V>lA TF.i.F,FACy1M1LE As a follow-up to our telephone conversation ctn Naveml~er 3U, 2UU5, regarding the validity of Village of Tcqucsta prdinance 394, and to supplement our discussion concerning applicable case law dealing with ordinance adc-k~tion, arncndrnent and ccadification, I am providing tht: results of my legal research and analysis. Firbl, a bit of background nn Ordinance 390. With respect to building height within G2 and PCD detiignated pones, Sections 1 and 2 of ordinance 3~Q, finally adc~ptcd September 14, 198c1, provide: 'BCtlOt1 1. SCltlcirl ViI, soh-section (C), Schedule; ui' Site RegulAt.ionS, of the Ufificidl 'toning Code of the Village of Tequesta, Ordinance No. 355, as amended is hereby amended within the Schedule of Site Regulations so as [0 1}rovide as lUl1UWS: (b) 1'he maximum building height in tltc C-2 toning District is hereby amended so as to provide t'or a maximum building height of five (S) stories up to seventy feet (74') in height. Section 2. Scct~on iJC-A, sub-section (B), pac~agraph (1}(b} of the OfFicial 7ening 4rdinancc of the Village of Teyuestx, Or~dinancc No. 355, fIS s~mended, is hereby amended to read as follows: (bj Permitted Building Height. The allawahle heights for buildings shall he the game as provided far in the C-2 Zoning 1~istrict; however, at tttc discretion of the Village Cou»cit, building heights may he increased to a maximum of six (~) stories oreighty-four feet (84'). Hel~~irzg ,shape I~lot•ir,~ct's Future BRAf3rNTON iUJt ~6irc A•;nnuE Y4edi Sun n'0 V Y97 i~.Ui A114~:~ I ~ 9a1-iG8•r1G34 JACK5C3NVILLF '/A:B B~rmea_1rs.~a (toad ~uRe G3~ a k.:, nrrillr Flnnri;~ 1%%,r. F 19Ctn-7]7-2Ci2C f ~ 4i;1 /tr i•, 7 TALLAHASSEE 1 "~ .:rnail~ (ii l.~d~ii ~~lu~:a ju Ir i~N} p ~ Ni~7 >>I i/ft': I ~ Ri~l'~4 4.rA~ www-Ilw•IAw-<am WFST P/tLM BEAClI I!UU calm tltrech Ua4.a r;l.d W'g;r F71n [ti; art, ~In ion 4i4fll !~ ~ ih1 h4i! l4K.rl: I ~ '. hl /VICl nii:2 0i:z'd ~029SLSi9S:ol :woad zb:9t S00Z-90-930 t.56=d ~0©:3~dd :QI Scott G. Hawkins, l;sc~uiits Tancs, Foster, Johnston fit Stubbs lleccmb~:r 6, 2445 Page 2 :xdd wda~:v0 s00a-90-~3a Qrdinance 39U was ccxlil'ied pursuant to OrtJinartce 589 in June of 2Ut)4 by the Village Council. Qrdinancc 53y is a very short general Ordinance that incorporates all Villt-ge (7rdinances into a single code. However, the printed codification, as set forth in section 78-255 of the; Villrtge Code, provides the fctllowing; The followigg general requirements and spet:ial regulations shall apply to all planned commercial cleveloPmentl: (2) Pen:titted bu.dd[Irra,+; hei~lrt'. The allowable heights f«r buildings in a planned conm~ercittl development shall. be the same as pmvided for in the C-2 coning distrtic;t; howovcr, al tltc discrctioet of the Village Council, building heights roar be incrcas~d to a rnaxitnutn of four stories or 50 feet. Between 1y89 sod ?444, the referenced language was never amended into Ordinance 39(.l. Murr;uver, neither the codification nrdinAnce nor the printed Gctde, indicate any inlent.ion to amend thi; original language. Obviously, ChCr.C is a ~fiscrepancy between the advpled ordirrdnCC and its codification that can only be A scrivener's error. Ordinance 394 allc~wti I'ur a rnaxirnurn of six (G) stories or eighty- four feet ($4') and section 78-255 of the Code allows for a maximum of four stories or fifty (S4') feet. There are a number of reasons why Ord~nanGC 39Q prevails, the first of which is that Section 7$-255 simply due;.ti Hirt make :tense. As cliscustiecl, it is an impossibility for the Village C.ottn~.iE lu increase the maximum building height to a maximum of four stogies ur 50 feet when the Village Ccfde already allows for S stories or 7Q feet in the C-2 nistrict. The last phrase of Section 7$-255 is obviously a scrivener's crrur that can and should be coi~'ected by the Council, i s,m enclosing a copy ul' a F'luricla Supr~nre. Court r,asc, Arrnston~ v, Citti~ afCdgewater, 1.57 So.2d 422 (i~la. 1963) which seems to be directly on point with respect to scrivener's crrur`. ~n that Ci1SC, the City's charter was attended and codified but critical wctrdb wc:rc inadvertently omitted from earlier charter ordinances. Tn that instance, the court concluded that the legislative intent was clear that the inadvcnctttly deleted words in question should have been included in tltc charter. The court reasoned "(w~he;n the addition of. a word is necessary to prevent an act from being absurd and in order to conform the stAtute to the obvious intent of the Legislature, then words 0T~~'d ~0~9SZS1=9S~ol :wo.~3 Z~•9t: 5002-90-~30 ':Sb=~J b00~3~1dd ~OI Stoll C. IIawkins, 8squi[~e 7cmes, Foster, Johnston & Stubbs L)eGember G, 2UU5 Page 3 XtJd WdZb~bO S00Z-90-~30 which were clearly omittec! through some clerics! nr scrivener's error may be added by the court." (Citing Southerland, Statutory Constt~uction) Based upon Arntstronsz, the Village Ce~uncil can and shc~ulcl corrt;cc the ety'or in its Code t-y including the correct words in Section 78-255, Second, it has also been sugsrrsted that Urdinanec 39[1 was [repealed by the codificaticm ol` the Village's ordinances, Ordinance 589 does not repeal ur amend day part of Ordinance 39U. Rather, Ordinance 589 incorporates Ordinance 390 into the Villsgc code. "fo interpret the Village Council actions olht•~rwise would suggest Ordinance 390 was repealed by implication. Tt is well-recognized that cot-rts will not approve repeal of a st;tture car c~rdinanee by implicat:ian unless that is the only reasonable i;onStruction. Palm Harbor Special Fire Control District y. Kelly, S1(i So.2d 249 (Fla. 1987), citing Witixlkate Tlcvclopment Corgi v. T-Tamillnn Cnvestmcnt Trull. 351 5o.2d 114 (rla. 1977); Tatniami Traii Tours, Inc, v. ~:atr[~' , 31 So.:•'.ci 468 (F'la. 15147}. Sr:. also Caloosa Prnperty Owners Assn, Tnc. v. Palm Beach Count , 4251 So.2d 1260 (Fla. 1'` DCA 1983), pet. rev. den., 438 So.2d 831. (1983). Tn this case, it would nut be rcasunable to construe Qrdinance 39U as having been rcpc;alcd by Qrdinancc 589. Further, wlten CU[1SidGnnp two cunlli~ling statutes (or ordinances), a court's obligation is to adopt an interpretation that }lttrmoni~es the two rclat:cd, if conflicting, statutes while giving effect to both, since the legislature is presumed to pass subsequent enactments with full awareness of all prior trnaCtmenlti and an intent that they remain in force. 51 b Sc[.2d 249, 25U. Generally, enactment of a statute or ordinance dots not operate to t'epeal prior statutes by implicatic~n, unless the legislative intent to da so in clear. Slate ex ret. Myers v. Cone, 190 So. G98, 7Q1 (Fla. 1939), quoting Staic y. County c>f Csadsden, SR So. ?32, 235 (Fla. 1912). Thus, when Ordinance 589 was adopted, which served to codify O[YiinAnce 390, it did not repeal Ordinance 390. Your office proviikd us with the relevant meeting minutes, and clearly, there was no legislative intent on the parr of the Village t~:ounCil to repeal Ur~iinancc. 39U, or rnorc specifically, eliminate the ability vl' the Village Council to increase the building height in the YC:I? district to six stories or R4 feet. h is n fundamental rule of statutory construction that a statute be construed in such a catty so as to cfPu;tuatc legislative intent and that all doubts as to the validity cif :~ statute should be resolved in favor of its constitutionality. Futthcnnore, eonstntction of a statute which would lead tc> an absurd result should be avoided. McKibben v..Mallor~, 293 So.2d 48, 5.1 (Fla. 1974). 1"ntcrpteting Section 78-255 to rrtcan it ~verricles Ordinance: 39U would be an absurd result since it mt,kes absolutely no logical sense to da so. 0tifb'd ~029SLSZ9S~ol :w°.~3 zb;9Z S00z-90-~3a ~S6=~ 100~3~7bd ~QI Stoll G. YTawkins, Esquire Jcmeti, Foster, Johnston & Stubbs December G, 20U~ Page 4 Xdd Wd8b~b0 5002-90-~30 NurthorrnUre, to be valid, an ordinance must be reasonable ~rniJ not in conflict with any cgntrolling provision or principle crf law r~rzd if azzy ~luttbt exists cis tv the ea~tczat of a power attempted tv be exercised, or which rirLr_V a~eel the canmon !aw right of u. ciri;.e~n, it is to he re~s~lv+:cl uguinct the nucnir..ipRlity. rihinger v, 5trjte ex rel_ Gctltesm~in, 2 So.2d '357 {Fla. 1941). See also City of Miami Reach v "Texas C 1'~4 So.:iCR (Fla. 1940). Thus, even if ttte;t'c is some sort of dQUbt that QrdinanGe 39t) was not repealed by Ordinance 589, as declared by the Nlorida Supreme Court, Ottlinance 39p shtruld he res<rlved in l'avtrr of its validity and againsC the Village. Finally, as you noted at the Irtst hctrring, the relevflnt rortictn of Secliirn Ili-2.55 governing building height within a FGD lone states unequivocally that huilding height "shall b~: the same as provided for in the C-2 Zoning District... ". The plain meaning of the cited ~cctiun mandates an a{low;rble height of 7U feet and 5 stories. I hope this lcttcc• serves to explain a littl4 bit Further why Ordinance 390 is good law. Please give me a c;tll if you would like t~ discuss this issue. Very truly yours, ~.~~~ ~ Terry )/. Lewis TEUrna Enclosure cc. All Cuuncil Members Mr. Michael ~Ut)7.,T,o Mr. Nich~lac A, Mnstroianni,ll 1vCs. Cheri Pavlik 1:1CIiGhI 1?oCUlnCnts\Allicd C~pilu112~24-M131C'iirrlitawkim lallnr rc ~~rdinunce 12-) RCVirCd.d~x: OT~S'd ~'0295!Si9S~~'1 :woad 6b~9I 5002-90-~3a S6=~! S00~3~dd ~OI ~Xdd Wd6b~b0 S002-90-~~Q ARMSxROIQG v, PITY OF ED(lEWA1`ER Fla. 42~ (:ttc na, Isla., IG7 t3sr.ld r:".: It should he Holed that in providing for nomination by petition, the 1963 amend- ment o[ 5cction 138, supra, +•~tt~cS reference to "candidates for tltr: office of city council- man * " "" god omits Cht words "or ntayur" which appear in this section as it was amended by the 1953 act quoted above. The effect of this omission, if l,errnitted to stand, would bP to crcatc~ a hiatus in the pro- ccclurC for nominating a mayor, The Gity charter prpvidcs fur rl+c r,ffice of mayor. Sn:tion 14, Chapter 2~9, Laws os 1953. The title to the 1963 statute announces that tftc act contains provisions for the nomina- tion of both n-ayzir ttnrl C.ouiiCilmen t-iy pri- ,nar}~. Section 8(a) of the 1963 act Pro- vides for the rti,min<rtiurt of a mayor and the, city councilmen in x primary where ntora than two seek the office. Nevertheless, in xrnC,tdCd 5cction l.itl of thr lchi3 statute L}te wnrr)s "or mayor" k•cre ornitted from the prot•ision which requires a Pctiticin to be Filezl fur the purpose of placing the name of ct candidate nn a Pr}mary or getural e}eo- Cion 1?allot. Tt is obvious from a comparison of Sec- tion I38, in the 1!363 statntc wit}t the scctinn :cs it appeareil iu former acts, the drafts- man of the 19b3 act based the new statute on the section as it read in th~~ 1J51 statute, which slid not provide fur an rlcetcd may- or, instead of nn tltr 1953 statute which did so provide, An e,camination of 5cction 138, as we ha.vc quoted it from t1]c three statutes in the forcp;ert of this opinion, will clearly establish the accuracy of this ub- Fervatinn, [lam] In c:camittirtg acts of the Legis- lature our judici;tl oblifiation is to sustain them i:f it is passible to do so. When we arc called upon to construe a legislative en- actment our prim,+ry r,hjection should be to ascertain the legislative intent. If r.},c irt- tent is clear from the content pf t:hr statntc, our functirar+ iy to interpret the act so as to cffcctttate that intent if we can r1U so by the applir.,ation of accepted rules OE stltu- tory ConstruCli~art, ,Sti F ~r1,~777,ti [4-8) Courts are, of course, extrctncly reluctant to arld words to :t sG,tute 85 e71- acted by the Legislature. .They Should ITC extremely cat.~tious in doing xo. The recog- ni-.cd rule, however, iy that wl~c,t sti word has obviously been ornitted and the context of the act otherwise reflects the clear and uncquivucal legislative i„tent, then this in- tent may be et~ectuated by supplying the wore! ur words which leave been inad- vertently omitted. The courts cannot and should tuft undcrtakP to Yul,ply words pur- posely ornitted. When there is doubt xs to fete lcgislxtivc: intent nr where speculation is necessary, that the cloubts should be rc- solved a8ainst the: pmvr..r of the Courts to supply missing words. On the other panel, tvl~cn [hc addition rrf 3 word is rreccssat'y to prevent an act from being absurd and in order to conform the statntc to the obvious intent of the LC[~i5lattrrc', then words which were clearly ornitted through sornr clrrical or scrivrncr's misprision may br added by the court. Southerlattd, Statutory Cun- structir,n, Vol. 2 (3rd editir,n) Scctiuri 4cJZ'}; Crawford, Statutory Construction, Section 2(10; S(? Arn.Jnr. "Statutes", Sccliun 25~+, p. 250. We c+urs~}vcy have heretc,fore applied this rule of statutory ronstructian. ~-j.Ztvoftll v, Chapman, .113 }~'la_ 591, 152 Sa. (f 3. Uur ]Fativorth opinion itself demonstrates that thi4 Court will supply the omittrrl words in s .situation where the ]cgislatiti•c intent is clear ln+i will refuse to supply them w}tcrc uncertainty as to the legislative intent pre- vails. In Atlantic (,.oa.•;t Lint: f.<T, v. Boyd, 1'ia., ~t)2 So,2d 709, we refused to supply a ,n'nrd where the legislative intent way un- clcar aitcl the addition of our own words wntrld m~rcly h;tvc amnnr,tcd to c,nr view of what the statute should hive contaihed:_ For the ;tplilication of,the slme rules in re- gard mpunctuation, see Biker v. Morrison, Ttla., 86 So.?d $f1S, ancl, V1'a~ncr, et al. v.. Rats, 1~ 1a., b8 So.2d 611. [9] Tn tFrz irigtxril: c%i~4C there catt lira ttzl doubt of the intent of the ]_•egistature in ena[ting Ghaptcr fk"i-I.il(}, L;~ws of 1963. ,~ ;: 0ti:6'd ~0i?9SLS1;9S~o1 :uro.,~ 6b~9i S00i?-90-~3a ~S6=t'I ta00 ~ ~~t1d ~ OI ~ Xtid Wd6b ~ b0 S00Z-90-~3a X24 la'la. 257 SO1J'PHERN REPdRTER, 3d SERIES By Chapter 29049, Laws of I'lorida, 1953, Certain sectiurts of the 1951 charter act wore amended. One amendment pro- vided for tour city councilmen to be electrrJ from voting districts anal a rrtayor to be elected by poTtular .vote from the city at lsrge. The 1953 act continued the proce- dure for nominating the City officials by pe- titiun and electing them by a plurality itt the general election. Section 13$, as amended by the 1953 act, reads in part as follows ; "Section 138, NOMINATION OF ~CANDT.gATF$-PETITIONS FOIL I'LACL ON BALLOT. Candidates for the once o f Gity Gwtncilrnan or ~lay~or shah be nvmit-ated only by pta- tion. The name of any qualified elector ttf the City shall be printed upon the ballot to be tssecl at each regular mu- nicipal election as a candidate for the o~tce of City Councilman or ATuyor, if there is filed with the City (,'lock a peti- tion in accordance with the following provisions, to-wit: t " •." (Ent- phasis added.) Chapter b.3-1310, Laws of Florida, 1963, purprtrts to be a further amendment of the provisions of the 1951 act as xmenrlecl by the 1953 act. '1'hc title to Chapter 63-1310, supra, reads in part ay follnw;+: "AN ACT ADZENDING SECTION'S $, 131, 135, 13fZ, 13fi(c), and 139 of CI3APTE.1: 27'532, LAWS dr rLt~K- II)A, ACTS 01,: 19~t, AS AAiFNn1:.T7 I3Y CHAPTER 294~y, LAWS qH FLORIDA, ACTS OF 1953, BEING THE CHARTER Ol• THE CITY C)F EI7C~EWATEI2, IN VQLUSIA COUNTY, FT.QRIDA, 13Y A)ti4E1~`i]- ING SEGxI~T; 13, 50 AS TQ PItQ- VIDE FUFi A Y17IMAKY IrLLG TION TWO (2} WF);KS PRTOR. TQ THE GENERAL. GI'l'X >rL1;C1'iC]N WHEN A~iQRL TITAN TWO (w) CANDII:IATES QUA3-iFY FOI>' 7'HE plFlCt 01:' CQUNCIT MAN nR M~1 YOR, * # k " (Emphasis added.} Chapter 63-1310, st;pra, added Section 8(a) which reads as follows "Section 8(a), T_ands lyi»g east of I:iverside Drive shall be included in the abutting voting zones west of River- side I~rivc. In the event more than two (2} candidates gtrali fy for tits o f- fice o f council~~tan or fltayor, a primary election shall be held two (2) weeks prig to the general city election and the two (2) candidates rceciving the greatest number of votes in the city primary election shall have their names Printed on the ballot as candidates in the general city election;' (Emphasis added,) 7t is perfectly clear from even a casual reading of Chapter 63-1310, supra, that the principal change itt tltc clcctiou machinery of the City sought to be accomplished was the r~ornination of the mayor and council- men in a primacy and clcctinn in the gen~ oral elcctinn when more than two can- didates sought these 5evcrxl otlises_ f;iowever, the amcnc.lmcnt of Section 13$ of the charter provision as contained in Chapter 63-1310, supra, rcailtr in part as follows s "Section 13$~ NOMINATIUN C)>: C:ANDIDATE5--1?LTII"IONS FOR PLACE ON BAI,LI?T. Candidates for the u~icr of city cottncil~tiait shall be npminatcd only by petition, The name of any qualified elcct~r uE tltc city shall be printed upon the ballot to be used at each refialar or pruEri<ry municipal etcction as a candidate for the office of city cortnciir~tnn, i4 there is fiir:A with the city cleric a petition in accordance with the following prvvi- 6i0nS, to-wit: (a) Such petition shalt state the name of c:~ch prrson whosC name iy presented for a place upon the ballot and that lie is a candidate for the Of]ite 4fi city eouRC>lman:' (Em- phasis added.) 0I~~3'd ~0Z9SZS~9S~01 :wo.~~ 6b~9T S00Z-90-~3Q X56=~1 X00 ~ 3Jdd ~ CI ~ Xt1d Wd~tb ~ ~0 S00i?-90-~30 A,B.MSTILONCr v. t1ITY OF EDGEWATI~, I''lA. 423 lilc na. FkL, aJi:iu °~ d.. inadvertcnc.e. l..aws 1931, C. z753~ and g 1 ~6 as amended by Laws 1953, c. 2U{}~F9; 1:.awA 1963, c. G3-13)4 and $ 8(a}, ID. Municipal Gorparttttons X79 Where tnunicipxl IKjwer is grxntccl by general a.ct which aflSrmatively announces by its own terms that it is cuttntlxtivc or is trot subject to restrictions in munlcipa[ charter, municipality has option to a!-,idr. by piuvisiur: cif its charter pr alternatively to claim benefits of cumulative g•euerai acY_ tt. Statutes ~12D(5) 19b3 Act amending statutes making up basic iegis[ativc charter of City of Edge- water was seat fatally defective fur fail- ure of kitic to set forth that provision of Act relating to opening attd efusing of rttu- nicipa[ re~istratian books had effect of nul- lifyix~lY city's participation in county permanent registration system, in view of pcrrnissivC nature of gcncraI Rct relating to city's usu of county's registration system. Laws 1951, c. 27532, § 131 as amended by Laws t<,t63, c. 63-1310; l~.S.A, § 9$.091. Robert II. Matthews arse} Frcd R. I7r1n- nnn, Jr., New Smyrma T3each, for appel- lants. Z.ouis Ossinsky, Sr., of Qssinsky & Kral, naytuna Reach, for City of 1;dgewatcr. Joseph I7irsclttnan, Daytona Beath, for l.~avid L. Wig~*ing, Jr. THORN~'11,, justice. We have for review by direct appeal a c}c- cree of the circuit COiart balding Chapter 63~131t1, Laws Of l~lorida, 19G3, to !tc un- ci~nstitutinnai. «ee must determine wFut}ter the suliject statute is invalid because of vapueness, ambiguities an(( the lack of a sufiicicr~t title. The AppcIlcc VM'ih~giriy filed a complaint for a declaratory decree construing Cha.p- to fi3-131fl, supra. IXc cvnt~nded that it was invalic.l. Thi: tippcllec City of Edge- water was the defendant. The appellan~s ~renstrimg oriel Mxy were permitter) to in- tervene in the trial Court. rot reasons wi~eirh we shall subsequently epitomize, the chancellor found the statute to be uncon- stitutional. Thc intervenors have appealed. Zrc this Court the City joins Wiggins, the sucCCSSfuI lilaintiff 1-c]nw, in resistitfg the appcll:tnts' assault on the final decree. The appellants contend that, although in- artfully draftee}, the assat.tlted statute ade- quately reflects a cleat' legislative intent and that under recognized roles of stattt- tary constructic,n cPittrirr wards which wer< obviously omitted inadvertently may be in- serted to cffcctuat.c the intent Of the Lebis- lantrc. The appellees rely upon the view of the chancellor to the effect that the statute is fatally defective Uccause of an insufficient title, and btcattse its language is vo vague and confusing that it is totally unrnfurrC- able. Chapter 27532, Taws of Florida, 1951, is the basic legislative charter of the City of Z;dgewater. Under this charter the gov- erning body consisted of ;Gvc city council- mcu who clCClyd a mayor from among. their awri number. 1 he cnuncilmcn were nomi- nated Uy petition and elected by a plurality in a general city election. Section }33 of the 1951 act reads in part as follows "Srctin!1 I3R. NUMINA',1'lUN OF C,ANDiUA'l'~:S-AF.TI.TIONS 1~OR YL/1CE Ov .BALLOT. Caridiclxtcti for the otJice of City L:o•irttcilrr:un shall Lc nominated only by petition. Thc' name of any qualifii~d. e~leelor of the t.:ity shall be printed ttpon the ballot to be used at each regular mun;ripal elec- tion a5 a Candidate for the ujf+~;~ of City Cal«xcilutar+, if there is filed with the City Clerk a petition in ar«~rdance with the, following provisions, to-wit: '" +~ *:' (rmphasi5 addec-i.) OT.Z'd ~0?9SLST9S~ol :wo.:3 6b~9ti S00Z-90-~30 zS6=i'I , ZOO ~ 3Jtid ~ QI ~ Xki3 Wd8b ~ b0 SOOZ-90-~3t7 ~~~ I+`L~. 7.57 SaIIT$ERN REZ'OItTER, 2d SER.IES Dana T, pRt-tSTHpNG nod Kenneth May, Appellants, v. C17Y t)~ SdGEwarEA, a muntctpal t:or~,uratlon, and f]arld L, Wlg• ytne, Jr., otc., Appellcos. No. 32842. Supreme Gonrt of Z~lorida. Nor. A, i ~.;, Pracceding for declaratory decree con- struing 1V63 amendment to statutes. making up hasic legislative charter of city of Edge- water. Thc~arcuit Court, Volusid Courny, C~argG William ~ackson, f., entered decree holding statutes unconstitutional, and the aggrit:v~~ pdrtics appealed, T'hr_ Supreme Court, Thornal, T., held that 19G3 arnend- tnent to statutes, cnakiug up basic legislative charter of city of Edgewater was opt in- valid fur failure to intluele words "or mayor" follvwing words "city councilman" in provision relating to nomination of can- didate for city officers, in view of clear leg- islative inttnt to provide primary system for nnn7iaating bi)th city cor,tn~iln,art and may- or, and such intent would be judicially ef- fectnsctccl by Court's supplying words ob- viously omitted through inadve,•te,ite. Decree reversed and cause remaneted, Thomas, Calclwcll and Hobson, ~J., dis- sented, t. Constttutlonal t-aw X45 SitPrerne Cattrt has judicial obligation, when examining acts of Legislature, to sus- tain them if Possible. 2. Statutes ~r81(rl Primary abject of 5uprrme. Court, when called upon #n construe legislative en- attment, is to ascertain legislative: intent. 3. Statutes ~a181(ty Tf legislative intent is clear frarn con- tent of,stattrte, Supreme Court's function i9 to irttc,•pret aa.t sous to effectuate that in- tent if it can do so by apPlic-atiurr of ae- c~~ptrd roles of statt,tc~ry constrt•.ction_ 4. Slatutss c3:~2d3 Court should he estrernely Caufiotts in Rdtling words to statute as enacted by Ireg- islature, 5. 5fatates ~2U3 When word has obviously been. omit- trcl frurp statute aruJ canteXt of act other- wise re(tects clear and unequivocal legis- lative intent, such intent may be effectuated lay attpplving word ar words which have been inadvertently omitted, B. Statutes ~2U3 Courts cannot and should riot undertake to supply words purpvscly OrrcittcCl from ' StBtutC. 7. Statutes 0203 When there is dr)u172 us to 1cg'islative inicr.t or wltcrc speCUlatio,t i5 neceSSdry, surh doubts should be reyolvcd ag8inst pdwtr of caarts tv 8uliply missing words iu srttul.e, 8. Statutes ~2U3 Wlren addition of word in stattrtc is necessary to ]tircvent g:i act fr~)rn being ahsur,l :and in order to conform statute to obvious intent of T,cgislature, warels whirr were c!c_Srly otuitted through some tleri- 'tal or scrivener's misfrrision may Gc addcA by caurt. 9. ~teetlone ~~1TQ 196:1 amendment to statutes rnaking up basic 1[giglative charter of city of Edge- water was not invalid for failure to in- tlude words "nr rnayar" following words "city cauneitman" in provision relating to nominatian t,f candidate for city officers. jn view of Clear legislative intent to provide primary systcrn for rionlirtating both City CounCllman and rriAyc)r, And 5uC11 intent woui<l be judicially effectuattd by tottrt's supplying wordy obviously omitted through ©ti.r9'd ~0Z9SZST9S~cl :wo.,3 6b'9I SOOi?-90-~30 ATTACHED IS THE PORTION OF THE MINUTES OF THE NOVEMBER 17, 2005 REGULAR VILLAGE COUNCIL MEETING REGARDING THE ATLANTIS PROJECT MINUTES -Village Council Regular Meeting 11/17/05 Page 4 $394,030.28 FROM CAPITAL PROJECTS FUND #303; $542,906.76 FROM WATER UTILITY FUND #401 AND $50,244.84 FROM STORMWATER UTILITY FUND #403 AND INCREASING THE BUDGETS OF ACCOUNTS DESCRIBED IN THE ATTACHED "SCHEDULE A" WHICH BECOMES A PART OF THIS RESOLUTION; TO FUND THE COMPLETION OF PURCHASE ORDERS THAT WERE APPROVED, FUNDED BUT NOT COMPLETED IN BUDGET YEAR ENDING 9/30/2005 AND EXPECT TO BE COMPLETED IN BUDGET YEAR 9/30/2006. 11.2 RESOLUTION 31-05/06 - A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, PALM BEACH COUNTY, FLORIDA, APPROPRIATING ADDITIONAL FUND BALANCE OF $14,183.60 FROM CAPITAL PROJECTS FUND #303 AND INCREASING THE. 2005/2006 CAPITAL PROJECTS FUND BUDGET, ACCOUNT #303-331-662.631 TO FUND THE. CONSTRUCTION OF VILLAGE HALL. END OF CONSENT AGENDA VIIL COMMUNICATIONS FROM CITIZENS Non-agenda items for public comments are limited to three minutes, please. Anyone wishing to speak is asked to complete a card and give it to the Village Clerl~ and when called go to the podium, state his/her name and address for the record, then address the Village Council. IX. COMMUNICATIONS FROM COUNCIL Council Member remarks on non-agenda items of interest and benefit to other Council Members, the Village and its residents. X. DEVELOPMENT MATTERS 12. a) Conceptual Presentation for the Atlantis project, located at 740 North U. S. Highway One. b) Quasi judicial Public Hearing for Special Exceptions. Allied Capital & Development known as Royal Tequesta located at 740 N. U.S. Highway One to allow a Planned Commercial Development in the C-2 Community Commercial District. Mayor Humpage suggested taking Items 12a and 12b together as quasi judicial items. Attorney Hawkins swore in 6 people. 4 MINUTES -Village Council Regular Meeting 11/17/05 Page 5 Ms. Catherine Harding, Director of Community Development noted the applicant Allied Capital and Development was applying and appearing before Council to request a review and is seeking approval for a Planned Commercial Development (PCD) within the C-2 Commercial District. She indicated a PCD is a special exception use within the C-2 Commercial District, as stated in Section 78-251 of the Village code of ordinances. She mentioned a Special Exception use is allowed under Section 78-177d(3). She indicated the Special Exception was approved by the Planning and Zoning Advisory Board by a 4-0 vote at their July 7, 2005 Meeting. Mr. Terry Lewis, Attorney, Lewis Longman and Walker, and representing the applicant introduced his team, Ms. Sherie Pavlick, Mr. Ed Oliver, and Mr. George Gentile. Mr. Lewis clarified Council has before them two items. He mentioned the Village code obligates the applicant to come forward to ask for a special exception, with a conceptual plan. He felt it made sense to describe the conceptual plan, and then go through the criteria in the code, Section 78-362 and 78-363. Mr. Lewis noted the only comments he has are preliminary to Mr. Gentile's presentation. He mentioned Royal Tequesta has been working with the Village continually since July 2004. He explained the amended application that is before Council this evening has been deemed complete by Staff since June 2005. In addition, he mentioned the current request before Council is fora 5 story, mixed use development with a 70 foot elevation, and 79 condominium units and commercial space. Mr. Lewis reiterated the Planning and Zoning Board reviewed the request in July 2005, and made a unanimous recommendation for approval. He explained after further discussions with Staff the project has been modified and now reflects the 5 stories. He pointed out this was a 6 story structure when it came before the P&Z Board otherwise the project is unchanged. He mentioned procedurally all the mailings and published notices that were required for the quasi judicial public hearing had been complied with. He indicated the application the applicant filed with the Village does address each of the seven criteria is Section 78-362, and the 12 criteria in Section 78-363. Mr. George Gentile, Project Planner, President, Gentile Holloway and O'Mahoney Associates and representing the applicant mentioned he would like to extend his condolences on the loss of Council Member Resnik. He noted Council Member Resnik had talked to him and his son before his son went into the military. He stated his son is now in his third tour in Irag. He indicated Council Member Resnik was a big inspiration for his son. Mr. Gentile mentioned he would go though the conceptual site plan, but noted the actual site plan would have to come back before Council for review and comments, should Council approve the Special Exception use. He commented the applicant had provided this conceptual plan to the P&Z ~ Board, and as stated in their minutes, they thought the plan looked good. He explained the property is about 6.03 acres, currently in the C-2 District, which allows the PCD for the 5 MINUTES -Village Council Regular Meeting 11/17/05 Page 6 commercial development. He noted the plan is for 7,500 square feet of commercial on the bottom floor, with 2 levels of parking underneath the building with approximately 194 parking spaces. He stressed the applicant has provided two amenity areas for the residents to use. He reviewed the conceptual plan, noting the project entry is off U.S. Highway One, because it is bound on all sides with developed properties. He mentioned the Casa Del Sol project is to the north, which is three story residential townhomes, and commercial property. He commented the project has a loop access road around the entire building, which provides access for emergency vehicles all the way around the perimeter of the project site. He mentioned the applicant was providing a large scrub jay habitant preserve area in the southwest portion of the property, and substantial buffers on both sides and a large green area in the front between the parking area and U.S. One. He noted they are also incorporating a lot of water into the project, a water feature at the entry ways and water features at the access points for the residents, so that there will be a continuation of that theme throughout the entire project. Mr. Gentile reviewed the lot coverage of 20.6%, which is well below the allowable lot coverage for the C-2 District; the open space that is allowable is 20%, and this project is at 55%, mainly because they are preserving a lot of the area for habitant, as well as providing a substantial amount of green and buffer areas around the entire site, and along U. S. One. He noted they have also provided additional parking for guests and 30 spaces for the commercial site, and although only 158 parking spaces were required, they are providing 194 spaces. He mentioned the applicant has worked very hard to come into compliance with the regulations of the C-2 District. He indicated the applicant has taken this building from its initial phase in 2004 to a request that now meets the C-2 height regulations. He commented they are at approximately 54 feet to the flat portion of the roof from the grade of this project; and are at the 70 feet height at the mean point of the architectural roof elements, which meet the height requirements in the C-2 District. He noted the applicant has worked very diligently reducing the density, reducing the height and increasing all the requirements that the Village already has in the code to make what they think is a fantastic project for the Village of Tequesta, as well as understanding the Village wanted them to meet the code in the land development regulations and to come together and make it all work. Mr. Gentile mentioned he was going to move on the PCD request unless there were questions on the conceptual presentation. Council Member Genco asked if they had an elevation at U.S. One. Mr. Gentile commented it was the northeastern exposure, and that the building is on an angle facing the northeast. Council Member Genco asked for an eastern elevation if someone was standing looking at the building on U.S. One. Mr. Gentile indicated the applicant did not have that color elevation completed at this time. Mayor Humpage pointed out they did have an east elevation in the packet. Mr. Gentile agreed, noting it was not in color. 6 MINUTES -Village Council Regular Meeting 11/17/05 Page 7 Mr. Gentile also noted all four elevations are in the package. He commented being a conceptual review he knew they would be coming back to Council. He pointed out the elevations were provided in 11 x 17 and the bigger size plans. Council Member Genco clarified she was looking for the architectural elevations. Vice Mayor Watkins asked if the grade was the existing grade. Mr. Gentile commented the property grade is at U.S. One then goes upward to the back of the property. Vice Mayor Watkins noted her point being, they were not adding to the existing grade to make room for the project. Mr. Gentile stated they were using the existing grade knowing that was a concern, so they were going below grade with the parking so it will be under the building, totally covered on the north, south and west sides. He mentioned they were leaving the grade where it is, and that there are approximately 30 parking spaces that are on grade and visible for the commercial space, but the rest of would be hidden. He commented the resident parking would be screened which is a requirement in the PCD regulations. Council Member Genco asked the percentage of commercial versus residential use for the building. Mr. Gentile explained they have 7,500 square feet of commercial and if you look at it based on the lot coverage area, which is the footprint of the building because they are units it would be approximately 14%. Council Member Genco clarified 14% of the footprint. Council Member Paterno indicated he saw a number of 275,000. He asked what the applicant was counting as the 7,500 for commercial space square footage. Mr. Gentile pointed out it is in the front area of the building. Mr. Ed Oliver, Project Architect, Oliver Glidden Spina and Partners and representing Royal Tequesta pointed out on the plan that on one corner they have two levels that are available for commercial use; one is at the main lobby level of about 3,900 square feet, and below that is another identical level. He mentioned the way it is set up on the plan is that they have the ability to have the resident's traffic monitored at one point, but still have the 30 cars out front with direct public access to the commercial space. Council Member Paterno clarified that the commercial levels were 3,900, and another 3,900 was below the grade. Mr. Oliver responded in the affirmative, noting there was a change in grade going from a very low elevation at the street to a very high elevation at the back corner of the property. He stated the lower elevation is accessible from the parking spaces and the sidewalk to the use. Council Member Genco commented it is not natural, half of it is below natural ground, and half of it is above natural ground. Mr. Oliver pointed out you enter at mid level, and you can go down a little bit, and up a little bit. Council Member Genco asked if it was like asplit- level. Mr. Oliver agreed. Council Member Genco stated so the project has 1'/2 stories above natural ground. Mr. Oliver stated someone would enter at mid .level in between two levels. He stated they were not altering the grade. Council Member Genco stated then one level is below natural ground, and one is above natural ground. 7 MINUTES -Village Council Regular Meeting 11!17/OS Page 8 Mr. Oliver stated yes, but not 1 1/z. He noted this was a conceptual plan, and that this site will still have to come in for final plans and design. Council Member Paterno questioned the total square feet of the entire building. Mr. Oliver stated about 157,000 square feet of air conditioned space, not counting the slab areas of the balconies, and does not include the underground parking, which is typically not a requirement to use the calculations for floor area ratios or calculations of that matter. He noted about 157,000 square feet, which includes all five levels of each of the two towers, along with the lobby space that connects in between those two towers. Council Member Genco asked if any of the residential would be at or below ground, or would the only occupied area be the one 3,900 square feet of commercial. Mr. Oliver noted all residential areas are above grade, and the only area that is partly submerged is the commercial area. Council Member Genco asked what type of commercial use was the applicant proposing. Mr. Gentile stated at this time they do not have it leased, but indicated they have had interest from a health club, a fitness center, and some retail. He noted it would depend on what they get at the time of the project. Council Member Genco asked if they allowed for enough parking spaces for whatever use they go with. Mr. Gentile felt they had ample parking for the commercial use. Council Member Genco asked if they have a unity of title for both pieces. Mr. Lewis stated as far as he knew, yes. He indicated he is not their real estate lawyer, but so far as he knew, yes they do. Council Member Genco noted the last time she looked they did not have it. Mr. Lewis stated he would confirm that for Council Member Genco. Council Member Genco indicated that would be the next thing they have to do for the next review. She asked what they felt would be the benefit to the Village by having these residential units. She asked how many residential units were proposed. Mr. Gentile stated there are 79 residential units. He commented the allowable residential density was 86 based on the code. He felt the residential component was a benefit to the Village for a number of reasons. He stated as a Planner the residential components adjacent to the property make it compatible with the residential of that area; there is other commercial space within the corridor of U.S. One that these residents will provide another user for those commercial areas, rather than bringing in more competition; and it would bring in more users within walking distance of the commercial areas. Mr. Oliver stated this vacant piece of property is not generating any tax revenue or water usage. He commented it was an opportunity to development this piece of property and that it is a good location relative to their neighbors to the south, and Casa Del Sol project to the north. Mr. Gentile felt the design compliments that area of the Village very nicely, and the market response for the sale of residential property in a Village like Tequesta is very strong. He noted the Village has an excellent reputation in terms of a place to live in a community, and that they think it will be a benefit to the people that live in Tequesta. Council Member Genco asked what the applicant purposes for the interior ceiling heights for floors 2, 3 and 4. Mr. Oliver stated the ceiling heights will be 9 feet, the bottom floor will be higher to accommodate the lobby and the recreation rooms and the top floor will also be higher. 8 MINUTES -Village Council Regular Meeting 11/17/05 Page 9 Council Member Paterno asked what the residential square footage would be on the total residential space. Mr. Gentile indicated it was 4% or 5%. Vice Mayor Watkins asked if the commercial component was going to be open to the public. Mr. Gentile stated it would be open to the public. He noted when the site plan comes back that could be something that is conditioned under the Special Exception use. Council Member Paterno asked if the overall height was going to be within the code at 70 foot. Mr. Gentile stated that was correct. Council Member Paterno asked about the underground residential storage units, and if that would be considered a basement. Mr. Oliver indicated that it would not be considered a basement. Council Member Paterno felt it was a basement and that it could reduce the height by 15 feet.. Mr. Oliver explained the project has two parking levels; the upper parking level has a 15-foot height because after speaking with Fire Chief Weinand they felt it would be advantageous to have the room to bring in emergency response vehicles, not fire trucks, into that level. He commented the parking garage is a gazage as opposed to a basement, when you are talking about habitable space the garage has people in it, but they are not living there. He stated a storage unit for a resident living in the building, much like a mechanical equipment room, is considered a use that is incidental and necessary to the functioning of the building, but it is not a habitable space. He felt they aze not gaining extra height because they are putting their storage units in the basement it is simply to accommodate the residents. Council Member Paterno noted that his interpretation is that it is a basement. Mr. Oliver pointed out it is sort of like a garage in Florida where you store things. He commented up north we have basements down here we have garages. He stated if push came to shove and they had to eliminate the storage units, they would. He commented that certainly would not serve the needs of their residents nor does it practically affect the height of the building. Mr. Oliver noted the actual roof height from the grade that surrounds the property is 54 feet to the top of the roof. He indicated the architectural elements are not habitable and are not enclosed, and represent less than 25% of the total surface areas of both building rooftops. He commented they aze measuring 70 feet to the mid point of the architectural elements, as opposed to a flat roof without any architectural features, where they could increase the overall height of the building where it comes up to the 70 feet, an extra 16 feet. He indicated that was not their desire to do that, but it is their desire to add the azchitectural features because they felt it adds to the Bermuda flavor of the architecture. He felt it was very compatible with what they are trying to do for the development concept. He noted as Mr. Lewis commented the applicant has gone from 6 stories to 5 stories in order to maintain compliance with the Village codes. Council Member Genco commented some condominiums have restaurants and fitness centers as closed memberships. She asked if this commercial space would be open to the public. 9 MINUTES -Village Council Regulaz Meeting 11/17/05 Page 10 Mr. Oliver stated it would be open to the public. He clarified the requirements of the special exception requires that the applicant demonstrate that they maintain that as public access. He noted the commercial space is totally open to the public, and the pazking is freely accessible from U.S. One. He noted the residents may be able to also enjoy the space, but the resident's only spaces would have to be accessed internally. Council Member Paterno asked everyone was going to be charged the same rates if they were outside members versus inside members, and if everyone would be treated the same. Mr. Gentile stated he did not know, but that would be something that they can look at in the site plan review process. Mr. Oliver noted they do not have a tenant at this time, but it appeazs a fitness center would be one of the compatible uses. Mr. Lewis noted the site would be open to public on a first come first serve basis. He noted he could not say what someone will do with a marketing plan once they lease the space. He felt it would not be the intent for someone to rent the space and try to lock up all the memberships. Council Member Paterno clarified he was talking if they chazged inside people $1,000, and outside person maybe charged $5,000. Mr. Lewis stated he supposed someone could do that, but there is no law against it. Council Member Genco felt it would not be considered a public commercial azea if they did that. Council Member Genco asked if the entire azea including the commercial area would be under a Condominium Association. Mr. Lewis answered he truly did not know. He felt it would be a contorted kind of thing if they took the commercial out. Council Member Genco indicated she did not see any reason why they could not have a commercial property own a piece of a condo. Mr. Lewis stated he felt they can, that there was no legal bar of that. Council Member Genco noted the only ongoing issue for the Village would be the commercial area. Mr. Lewis agreed. Council Member Genco commented under Planned Commercial Development (PCD) which is Article 8, Section 78-255 subsection 2, the permitted building height is 4 stories, or 50 feet. She felt that was a conflict with a 5 story building. Mr. Lewis stated the former Community Development Director explained that the 50 feet is an error, that it is actually the 70 foot height. Council Member Genco stated the code says under 78-353 if there is a conflict it would be whatever is stated in this section that prevails. She noted that is a problem because according to the code, the Council does not have discretion to give more than a 4 story building. Council Member Genco stated unfortunately the Community Development added that and it is not in the book. Mr. Lewis stated the Community Development Director is no longer with the Village that wrote that piece. Council Member Genco stated what the new Community Development Director did was print from the Municipal Code, and because she changed it to what she thought it should be, and not what the codebook has. She pointed out the codebook says one thing, and they aze looking for something that it does not say. Mr. Gentile explained the C-2 District is the underlying district for this property. He stated if you go to the section, it allows for a height of 70 feet, 5 stories. He felt that is the underlying district criteria. 10 MINUTES -Village Council Regular Meeting 11/17/05 Page 11 Council Member Genco noted under the C-2 District it references the provisions of Article 8, and so the chart does not really apply. Mr. Gentile indicated the chart is what the applicant is suppose to look at, because that is the site development regulations for the C-2 District. He noted that specifically indicates the code. Council Member Genco reiterated the code says if there is a conflict with other regulations; where conflicts exist between the special planned commercial development regulations in this Article, and General Zoning and Subdivision and other applicable ordinance provisions the special regulations in Article 8, shall apply. She felt this was something Council needed to consider in looking at the entire project. She noted this is where Council was a couple of weeks ago when they were trying to decide whether or not to call a moratorium on everything, or if Council was going try and proceed with the conceptual review on this project. She stated Council has a choice of proceeding with 4 stories or changing this to 5 stories. Council Member Paterno stated he also agreed with Council Member Genco. He felt the PCD regulations supercede the C-2 if they were going for a PCD. Mr. Lewis agreed if someone was to read the code they could get there, but noted if you read the permitted building height definition in PCD, it says that the allowable building heights for the buildings in the PCD should be the same as provided before in C-2 zoning. Council Member Paterno commented unless there is a conflict. Mr. Lewis pointed out it does not say conflict, it just says it shall be the same as provided in C-2 zoning, and than it goes on to say, however, at the discretion of the Village Council, building heights may be increased to a maximum of 4 stories or 50 feet. He stated that makes no sense. Council Member Paterno agreed, and stated there is a conflict. Mr. Lewis stated there is a conflict, but the first time he encountered the code and asked Mr. Newell about it, he pulled the adopted ordinance and it read differently, that it is a scrivener's error that has never been corrected. Council Member Genco questioned which ordinance that was, and if it preceded this code. Mr. Lewis indicated the language got transcribed incorrectly, and as it reads it makes absolutely no sense. Council Member Genco felt 4 stories and 50 feet were consistent. Mr. Lewis questioned if the code allows 70 feet, Council has the discretion to increase the height to 50 feet, 4 stories that does not make sense. Council Member Genco indicated the codebook was adopted, and replaced anything that was resolved by ordinance before that. She agreed there is no doubt there is an inconsistency in the codebook, but the codebook is what prevails. Mr. Gentile noted the ordinance that Council adopted and signed was codified into the codebook. Council Member Genco commented Council approved the re- codification of the code. Mr. Gentile noted Council did not readopt the ordinance. Council Member Genco pointed out they do not have to, because everything is null and void before that. She explained anything that is adopted is replaced by the code when Council adopted the recodification ordinance. Mr. Gentile stated when someone does a resolution and there is an error and the text is different elsewhere, you go back to the adoption ordinance that the Council adopted. 11 MINUTES -Village Council Regular Meeting 11/17/05 Page 12 Mr. Gentile stated an ordinance was adopted that Council had the discretion to go 6 stories, 86 feet. He felt the recodification does not rewrite the code, that it was a scrivener's error in the text. Council Member Genco indicated if the code was recodified after the ordinance was made, this code is the one that would prevail. She commented this code was adopted along with the Florida Building and Zoning code. Mayor Humpage commented Mr. Gentile feels that there was an error made of how it was written. He noted Council signed Ordinance 390 in September 1989, and it has the heights of 5 stories, 70 feet. Council Member Genco indicated it references a lot of things in the same ordinance that are no longer the same numbers. Mr. Lewis noted unless there is specific repeal of an ordinance or amendment to that ordinance, the ordinance should stand. Council Member Genco indicated the Village no longer has an Article 16. Mr. Lewis stated the Village does have an ordinance that specifically speaks to the height of the stories, and that it has not been repealed or amended since 1989. Attorney Hawkins indicated the way it is framed, he understands Council Member Genco's point, but the Village has an internal inconsistency that does not make sense, but the Village also has a variance with the schedule. He noted they also have the mandatory use of the word "shall" and when he would argue statutory construction the word "shall" means that it "shall" govern. He commented when the code says that it shall be the same limitations as C-2 that is a mandatory statement by the framer that it shall be. He stated there is an inconsistency, as Council Member Genco pointed out, but the schedule says 70 feet, and there is mandatory language used to refer back to C-2, which is the underlying zoning. He stated there is language about the conflict, he understands that, but he interprets statutes everyday and the presence of that term "shall" is important. He noted he is mindful of Ordinance 390, which talks about 70 feet, but he is not specifically aware of where that was repealed. He indicated he has not seen the document to indicate that. Council Member Genco stressed that she was under the assumption that Council adopted the code that is in the current black book, and that Council repealed all the prior ordinances that were adopted. She noted it would only make sense to her, that when the Village is trying to look at the ordinance and reference the sections it is talking about that they do not exist anymore. She commented if you are going to Section 7, it does not match with the Section 7 in the black book anymore, and does not match with subsection a. She indicated none of it matches so it is obvious that ordinance was repealed when this was adopted. Mr. Lewis stated he disagreed with that. Council Member Genco commented when you do an addendum, you red line and black line and add in, you do not reference the code with having the same numbering and the same Articles. Mr. Lewis stated it is also a fairly standard rule, statutory construction, that you do not repeal a statute by implication. He commented there is no repeal of that ordinance. He explained the applicant has spent six months abiding by that, and taking the direction on just that point. Mayor Humpage noted when he goes back and reviews the communications he has gotten from Planning and Zoning Board, and Community Development Staff 12 MINUTES -Village Council Regulaz Meeting 11/17/05 Page 13 it is all the same, 5 story/70 feet. He felt Council should look at the way the Village has directed these people. He stated the Village has been directing these people for a year on 5 stories/70 feet and now the coin is being flipped on them. Council Member Genco felt that it was very important to bring up. She noted the building height was at 70 feet, but the top of their pazapet was at 84 feet. Mr. Gentile agreed that goes higher, he noted the height is measured to the mid point of a sloped roof structure. Mayor Humpage agreed the parapet on the reaz elevation roof line exceeds the 70 feet. Mr. Gentile indicated the code excludes those in the calculation of the building height. Council Member Paterno noted at the same time Council has the discretion to do any height they choose. He asked if that was correct. Mr. Gentile agreed, and indicated he was just trying to explain what the code says. Mr. Lewis stated if the applicant complies with the code, they aze entitled to a 70 foot height. He commented how Council intends to interpret that feature of the building is in the eye of the beholder. Mayor Humpage noted he was surprised the largest section of the building on both sides is for the elevator. Mr. Oliver stated the life safety code requires that a building this high that stairs go to the roof. He stated in every jurisdiction that he has ever practiced in for quite sometime, things such as elevator penthouses, which is the override for the elevator stair towers above the roof for those purposes, things such as pazapets are unilaterally not included typically in building height. He noted one thing is these azchitectural elements are not solid, they are open; but if they were solid you would go half way up that slope for the mid point. Mayor Humpage commented the elevations from U.S. One run from 16 1/2 to 17 feet to the center of the road, and then it goes from 17 feet to 30 feet in some azeas. He asked if that was the natural slope of the land. Mr. Oliver clarified the elevation is at 15.4 at the driveway, and the northeast corner of the property is 14.5 at the edge of the pavement. He noted the existing topography goes from the low point up to 30 some feet at the southwest corner of the property. He mentioned the first floor lobby level is at elevation 26.0 feet. He stated from the code the way the building height is measured is from the average grade surrounding the building. He stated they believe they more than satisfy that. He indicated he would hope that Council would see the benefit of this project moving forward under a special exception approval, so that they can come back in for the formal site plan approval with the details. Mayor Humpage commented one of the things under the special exception is that they should be compatible with surrounding area. He stated if this project has the topography it has that he did not feel there were in the same ballpazk. He noted this project is going to be 30 feet higher than Casa Del Sol, and as high as the St. Jude Cross. Mr. Oliver stated they would be quite a bit further away from the road. He noted when he was the azchitect and analyzing the Casa Del Sol site, they studied a taller building, but they had a Mobile gas station in front of the project, and the development team decided not to do that. He stated they decided from a market standpoint on that location to build a 3 story townhouse, with the commercial to the front of the residential. 13 MINUTES -Village Council Regular Meeting 11/17/05 Page 14 Mr. Oliver commented on this particular project the amounts of open space that they are able to provide both landscaped as well as open space, is enhanced by the ability to take advantage of the Village's portion of the code that allows them to go with Council approval up to that 5~' floor not to exceed 70 feet. He noted less than 25% of the roof plan area of the building is represented by these tower elements. He felt that was a real plus. He stated if the Council came back and said just do not do it when they come in for the site plan they would not, but they think it is a better project, and it does not get them anything if it is eliminated. He felt it helped add something to the architectural character of the building. He stated these are comments that they want to hear. Council Member Paterno read from the code the purpose and intent of the PCD. He asked how the Village was going to have a unique commercial oriented focus on this project. Mr. Gentile commented it is unique that it is a mixed use, with a commercial component and residential units. He noted that Section also indicates and establishes a living environment in the PCD as well. He felt the applicant has accomplished that to make the project successful and unique by having a commercial component that is integrated in with the residential units. He felt they were meeting the intent of the PCD ordinance. He indicated he spent a week of his time when the Village was going through the Charette meetings. He stated he knows what the intent was to provide the ability to have a mix of uses, not only just on one site, but mixed throughout the entire area of that zoning district. He felt bringing the residential component into that area was a benefit to the other commercial entities that already exist. He noted they brought a commercial entity into this to provide a mixed use, which is unique itself, because it is actually integrated into the building. He indicated the Village does not have it anywhere else on that corridor. He felt they meet the intent and the past history of Tequesta. He suggested they have missed on a lot of areas in the Study area, from Tequesta Drive, north to County Line Road by not integrating mixed-uses, putting commercial inside or with residents above it. Council Member Paterno commented this PCD is within the C-2 Community, and the purpose of the C-2 is "this District will serve the community at large and provide a mixture of convenient goods and services that offer a greater variety of use then permitted at a neighborhood level." He asked how the applicant was providing services in this commercial area, and building. Mr. Gentile indicated he did not know what would be going into the commercial space, and there may be some uses in there that would bring services to those residents and to the surrounding residents in the area. Council Member Paterno pointed out the applicant was proposing less than 4% of the property for commercial that will be serving the public at large. He felt the intent of the PCD was to establish a unique opportunity that also serves the public, the whole Village. He stated that is the intent of the commercial district, which is a subset. Mr. Gentile commented the C- 2 District also permits a PCD, which is the way residential comes into that mix. He stated that is the only way a developer can put residential in a C-2 District. 14 MINUTES -Village Council Regulaz Meeting 11/17/OS Page 1 S Council Member Paterno stated that is correct, but felt the percentages could be switched around to make it 96% commercial and 4% residential. Mr. Gentile agreed that could be done by a developer, if he felt that was the market for that area. He noted by putting in more commercial the Village would have more impact with traffic, more impacts to the existing commercial areas along U.S. One. He stated the Village already has a lot of shopping centers that have a tremendous amount of vacant space. Council Member Paterno asked Mr. Gentile his opinion on the intent of the commercial district. Mr. Gentile stated the intent of the commercial district is to provide commercial services to that azea. He felt the Village in the past set that district up to allow for a mix, because they knew it had to be flexible enough for the Village to handle whatever mazket comes along for that area. He noted that was basically the whole mindset of the study area. He commented the Village went in and actually got concessions on traffic, and other issues with the Department of Community Affairs (DCA) based on that flexibility. Council Member Paterno commented on Mr. Oliver's earlier comments on the Casa Del Sol project and that they built a 3 story building behind the commercial, and that they thought that was in the best interest of the Village at that time. Mr. Oliver stated from a planning and azchitectural standpoint the reasons that the Village has a Planned Commercial District (PCD) or Planned Residential District (PRD) is to be able to vote different azchitecture and planning solutions to the properties. He indicated this pazticulaz piece of property has very narrow frontage. He felt if the pieces that have the commercial properties closest to the road, aze the more successful ones. He stated if the commercial goes deep, the person in the very back corner generally has a tough time. He noted this is very much true in any city. He stated in the analysis of Casa Del Sol, a different project, a different time, and different client, the developer had analyzed that project and felt the most appropriate response to his site was a 3 story townhouse project. He stated this developer after a great length of time, and a lot of analysis feels that this project can be most successful, by inserting the residential component. He stated it would not be possible to put all this commercial and have way back away from U.S. One. He stated the applicant is asking for a special exception, so that they can come back to Council in detail to do the site plan very soon. He noted they do not think that it is inappropriately placed. Mr. Oliver stated if Council does not want the towers they would take them off. He stated they aze requesting Council's approval to move forward. He indicated the property has been vacant for quite some time doing no one any good from an ownership standpoint or a tax standpoint. Vice Mayor Watkins stated she knows the applicant has been working on this project for a very long time, and she has tried her best to go through the code, and the backup materials that were provided. She stated she has lived in the Village for 28 years, and understands how it is really a great place to live. She commented the residents here aze very proud of it, and they have chosen to live here. 1S MINUTES -Village Council Regular Meeting 11/17/05 Page 16 Vice Mayor Watkins felt Tequesta would never support major commercial; and that the Village does not have the population that can support it. She stated a week does not go by that someone asks that a Target, or whatever come to the Village. She felt no big store like that is viable here from the impact on them financially, so she suggested it was important that the Village have enough businesses and professional offices here to support the residents and their immediate needs. She reiterated she personally liked the residential component here. She stated she would never want to see a 12 story project here, or so many units. She stated she did want to see a commercial component that is going to be open to the public, so she supports that. She felt Council needed to look at the Village as a whole, and this was going to be at the north end, and not central to downtown, and also next to another residential project; she felt this would be good for the Village and the people who live there aze going to frequent the shops azound them, and that she personally supported it. Council Member Paterno passed around some pictures he took from the Village Manager's office of the elevations from his office. He mentioned he noticed the church steeple and how high it is, so that everyone, including the Council will realize how faz this project will stick up in the horizon. He reviewed the pictures, and indicated he had concerns for the residents that would be moving into Casa Del Sol, that this building would be over them approximately 30 feet. He felt in the wintertime they would never see the sun. He suggested Council needed to look at the general compatibility with the adjacent properties, and other properties in the District. He commented there are no other residential properties such as this on their site, not even close. He noted it was approximately 60% higher then the residential next door, that was at 50 feet. Council Member Genco commented she understood that the Casa Del Sol property next door was pretty much sold out. She asked what were those people told when they bought the units would be their neighbor. She asked if they were told there would be a 5 story building next door, or were they even asked. Ex Parte Communications: Council Member Genco indicated she did not have any disclosures. Council Member Paterno indicated he had not spoken with anyone. Vice Mayor Watkins commented she had not spoken with any of these representatives, but had conversations with the original representative Mr. Burkhart. She stated the conversations were regarding a proposed drawing of the concept of the Atlantis project at that time. She stated she was Mayor at the time and encouraged them to work with the Community Development Department and the process. Attorney Hawkins indicated that would have been back in Fal12004 if she spoke with Mr. Burkhart, and that it was a text amendment application, 16 MINUTES -Village Council Regular Meeting 11/17/05 Page 17 Mayor Humpage indicated he visited the site and spoke to Mr. Lewis one time on the telephone regarding his take on the project, and he told Mr. Lewis if they stick with the code he would not have a problem. Mr. Lewis stated in response to Council Member Paterno's question, for the record, what Council has before them is a completed Staff report that was prepared by the Staff of the Village; it methodically goes through all the criteria that applies to a PCD development. He stated the only question that was raised in that report was as to the definition of a gazage versus a basement. He noted the issue of compatibility with neighborhood, the issue of traffic, the issue of the compatibility of the uses proposed with what surrounds them, was questioned in the positive by the Village Staff. He mentioned that is a part of the evidence of this proceeding. Council Member Paterno stated all they represented was the height of the building, and the height of the back azea, and that Staff took no position. Mr. Lewis stated he believed if Council goes through Mr. Newell's report, he goes point by point through every one of the criteria. Council Member Genco asked if that was the application that was withdrawn. Mr. Lewis stated it was not, it was amended and the height of the building was reduced from 6 stories to 5 stories. He indicated this was the application that was before Planning and Zoning Advisory Boazd in July 2005. Council Member Genco asked if the application was for the Special Exception. Mr. Lewis responded it was. Council Member Genco pointed out she did not know why it went to them, it should not have gone to the Planning and Zoning Boazd. She stated she is not sure how it got there. She felt this should have been the first step in the process. She asked what were the people told that bought at Casa Del Sol. Mr. Gentile stated he could not say what they were told, but some of the property owners present that bought there maybe could tell Council. Mr. Gentile stated this evening the applicant was present for the PCD review. He noted they will be come back with the site plan, and that they were only present for the conceptual. Attorney Hawkins mentioned this is the first time that Council has been together to talk about the project. Mr. Gentile reviewed the criteria the applicant was to meet for the PCD was under Section 78-362, and Section 78-363, which is required for approval. He distributed to the Clerk additional information for the record, which included his presentation this evening in regards to the criteria. Mr. Gentile indicated there aze 7 items under Section 78-362, and the Village Staff after review and prior to Planning and Zoning Board action, all agreed that they met all the intent of those 7 items, such as the proposed use, and compatibility. Council Member Genco noted the Council is the one that has to give comments not another Boazd. Mr. Gentile stated he needed to give his planning professional opinion as to how the applicant meets those, and then Council needs to review those that the Staff and the applicant prepazed over a number of months, so that they made sure they aze compatible with all those issues. He noted the applicant exceeds the parking requirements of the project, and that they comply with the C-2 District regulations, with the height, and other items that allow this use to take place. 17 MINUTES -Village Council Regular Meeting 11!17/OS Page 18 Mr. Gentile reviewed the criteria under Section 78-363, and noted the applicant is in compliance with all the comprehensive plan provisions relating to the project; the ingress and egress in the proposed project will not provide a hindrance to traffic flow, and fire safety. He mentioned they specifically put a complete perimeter circulation road for fire rescue to get to every point on this building. He noted there aze not many other condominiums in the north end that have a complete circulation road around the site. He noted the refuse is done internally; they screened and buffered the area, and have ample landscaping, and over 80% of the parking is totally screened from the public. He stated the signs will met the criteria, but since they aze not on the plan, he stated they would meet those requirements. He stated they meet or exceed all the Yazd requirements, and aze in general compatibility. (Public Comments) The Village Attorney swore in 2 additional people. Mr. Russell von Frank, resident of Dover Road, former Council Member, and a current member of the Planning and Zoning Advisory Board mentioned he has spoken with a lot of people about this project, and everyone said if it has to be, make sure to keep it within the code, no changes or adjustments. He indicated one exception the people down at Waterway, especially one gentleman who owns, and does a lot of buying and selling of condo's to make a profit. He noted this gentleman asked Mr. Von Frank to keep his eyes open because it was looking to buy more properties. He mentioned he presented to Council a while back pictures, and now he brought larger scale drawings to show Council regarding how commercialized it is now, and what it would look like with the Atlantis building, and what could happen in the future. He commented another developer approached this gentleman and they would like to buy Waterway; at a purchase cost of a %2 million a unit. Mr. Von Frank stated the gentleman had also been talking with the people about where Publix is leaving, and that is in the works. He stated he wanted Council to know of the potential development in the works. Mr. Neal Jagoda, and Ms. Nicole Jagoda, residents of Jupiter Inlet Way, Tequesta and the brokers involved with the Casa Del Sol project. Ms. Jagoda indicated they have been telling and keeping the residents abreast of the proposed Atlantis project, and that the 12 stories did not get approved, and that something could be approved up to 5 stories per the code. She indicated the residents did not seem to have an issue with that, and that they seemed positive that they would have another residential community near them. Mr. Jagoda thanked Mr. Oliver for the great job he did at Casa Del Sol. He felt the residential next door would be a plus, and understood Council Member Paterno's concerns, but that it would be positive thing for the area. 18 MINUTES -Village Council Regular Meeting 11/17/05 Page 19 Council Member Paterno asked if there was a determination regarding the storage area. Mayor Humpage stated if this project goes forward then it would have to be reviewed under the site plan approval. He stated Council was looking at whether to grant the special exception this evening. Attorney Hawkins stated if Council has a comment about the storage issue in terms of the interpretation of the code; he suggested they put it on the table. He noted Council is addressing the concept that outlines fundamentally what the developer intends. He commented it will come back for final site plan approval, but he is concerned about the fact that Council is looking at a conceptual which is the premise for the request for special exception. He stated they are relying upon that concept. Council Member Paterno asked if the special exception was passed Council could be locked into that concept. Mr. Gentile stated the applicant would take the storage out of the building at this point that it is not a critical part to the project; he stated it was a benefit to the residents. He felt that would be something that would be discussed at the site plan approval, but they would be glad to eliminate the storage from that area. Mr. Lewis stated to leave a record, he would stimulate, having knowledge that concept is in the design, if Council chose at site plan review to take it out, to say that is not compliant with code, he would not argue that condition. He stated Council could condition the site plan approval on that, and he does not think he would have any grounds to object. Mr. Oliver stated what he would like to do is leave the storage, since they are at a conceptual level, but if it turns out that Council tells them to take it out, or that they can not have them that he would not want to give that up right now because that is something that is important to the residents because it is like a garage and their area to store things. He apologized to Mr. Gentile for giving him the wrong direction on the storage units. Mr. Lewis noted the Village has a definition in the code of accessory uses. He stated it is typical that storage is an accessory use within a garage. He felt the definition was not absolute about that, but there is flexibility to interpret it that way. He stated he agreed with Mr. Oliver, but he would not raise a legal bar at the hearing on the site plan, and tell them that it was his opinion that Council could not take out the storage, at that time. Attorney Hawkins commented if Council approves the request, at site plan approval they have serious questions about this plan. He stated they are wondering what the applicant's position is going to be if they are asking for some material changes. He commented the code is frankly unclear. He mentioned he was sympathetic to Council's questions. Mr. Lewis commented in the abstract he could not give Mr. Hawkins 100% comfort on this, but if there is a public, health, safety or welfare reason for Council demanding a condition of change at the site plan, if there is a comp plan or land development regulation that they feel just is not met, with the site plan they have the authority to direct that that be removed or modified in some way from the site plan. He stressed that is the black letter law, and he would not argue about it, since that is not the kind of lawyer he is. He indicated he could not tell them actually what he would say until he hears what the Council may want to do. 19 MINUTES -Village Council Regular Meeting 11/17/05 Page 20 Mr. Lewis commented he told Council Member Paterno the issue of how they would treat the storage in the garage. He noted that was a relatively easy one, that if the site plan were conditioned on them taking it out, they would accept the condition, and take it out. He stated that is as clear and definite as he can be. Mayor Humpage asked if he voted no, would he have to give a reason. Mr. Lewis responded in the affirmative. Mayor Humpage stated if he was going to vote no, he was going to use the criteria under Section 78-363, Item 10 General Compatible with the adjacent properties, and other properties in the area. He stated when he looked at the applicants elevations, the mean section/middle of the roof and being an electrician, the residents would see a spire that is 14 feet above the center of the roof, and knowing they do not read all the little stipulations, they see the building with the elevation change in the land. He stated the elevations here are a concern him. He indicated he would not want a flat top building, but 14 feet to the top of the spire is still 14 feet to the top of the spire, and if they are not going to count elevator rooms or shafts, that lays out to the letter of the law. He stated the residents do not have the letter of the law, and are common sense people and just want a nice building that does not stick up. He commented he takes exception to these elevations. He stated he does not want a flat roof, and does not want this building coming out of the ground in Tequesta like a volcano. Mr. Oliver commented he felt it would then be incumbent upon them, when they come back for this, should they obtain approval for this tonight to come back to this Council with sufficient graphics and thought given to their comments. He commented what they have before them is only one component of the presentation to Council to show them what the project looks like. He stated he hears the comment, and understands them. Attorney Hawkins asked if the applicant was taking into account the Mayor's comment with regard to revising their plan to address his concerns. Mr. Oliver responded in the affirmative. Mayor Humpage commented he would like to see this parcel developed, that it is attractive work they have done, but he has some issues, and Council Member Paterno has some issues with the storage. He commented he has a problem with the height. Mr. Oliver stated the benefit of having the opportunity to bring before Council the conceptual approval to hear for the first time in a group session, what those concerns are. He felt it was incumbent upon himself, as part of the design team, to come back to Council with sufficient information to where they understand and react to their concerns, and show more of what the project is going to look like. Council Member Paterno stated he also had the same concern about height, in reference to the surrounding properties. Mayor Humpage stated there is no action needed on Item 12a, the conceptual review. Mayor Humpage stated the Council is now at Item 12b, the quasi judicial hearing for the Special Exception. 20 MINUTES -Village Council Regulaz Meeting 11/17/05 Page 21 Council Member Genco questioned whether the Council has made their comments, under (f). Attorney Hawkins noted Council has not made their comments. Council Member Genco indicated she did not have an issue with the pazapets, but believes the code allows an exception for them. She stated she does have an issue with the fact that she is not sure a 5 story building conforms with the criteria that is spelled out, as mentioned earlier, because it is her belief that the Village superceded that regulation 78-255, with what is currently in the code, and that all the other codes and ordinances were repealed on the Village Council adopting this. She felt she has to follow the code whether she likes the development, or whether she does not like the development. She mentioned she felt the development is well thought out, and that a residentiaUcommercial combination would suit that site very well. She stated she did not think it would be Item 7 under 78-362 criteria. She asked the Village Clerk to take a look through the minutes, because she believes that Council repealed them at some point and time, when Mr. Newell was her, and when the Council adopted it. She stressed if she could get clarification on that she might change her mind. She stated right now she is going to follow what the code states. Council Member Paterno indicated he would agree with Council Member Genco on her items, and it could potentially be a good thing for the Village. He suggested there should be some changes, that it does not meet Item 10 or Item 11. He commented at the same time he is not sure it meets the purpose of C-2 azea. He noted it is suppose to be a unique place, and at the same time it reminds him of a hotel with domes, and his conceptual ideas aze a little bit different for the Village. He stated he is going to do what is in the best interest of everyone, the Village, and the future of Tequesta. Vice Mayor Watkins felt it was unfortunate that it is not clear as faz as height, but that it is in the site schedule requirements is it 5 stories/70 feet, She noted that would need to be researched. She commented she is very appreciative of the fact that the applicant did make considerable effort to bring this in to what they believe is the code. She felt that a lot of work had been done on the part of the applicant, and concessions were made, and they have the commercial component. She felt it would be an asset to the Village. Mayor Humpage stated Council may have another option. He felt Council Member Genco brings up a valid point and it seems to be a major concern. He commented a lot of work has done into this project, and there aze only four Council Members on Council, so the applicant will need a 3-1 vote. He stated however, another option to consider is to defer until Council could have clarification on a couple of questions. He noted if the applicant goes for a vote, and the vote goes negative, they have to wait a yeaz. Mr. Lewis indicated that is why he was standing back up to say that he would rather than having the necessity to go through the appellate process; he felt the applicant could not tolerate another year of this. 21 MINUTES -Village Council Regulaz Meeting 11/17/05 Page 22 Mr. Lewis pointed out in his mind it is faz more preferable to defer this and at least get clarification of the code. He commented he was certainly willing to do that until the next Village Council Meeting to try and make sense of this code. Mayor Humpage asked if it was his understanding that if Council defers this, that the applicant understands basically if they move on to site plan review; where Council is at and the issues they have based on the project itself. He felt the Village needed to get to the bottom of what Council Member Genco brings forwazd, and get clarification. Village Manager Couzzo indicated Staff and Legal Counsel would investigate and clarify. Mayor Humpage commented speaking of appellate, the Village may end up spending more money. Mr. Lewis stated he has no desire to do that since they have spent the last six months. Mayor Humpage suggested these issues need to be ironed out regarding the code, and come back on the agenda in December. Mr. Lewis commented the only addition that he would add to that would be to suggest at an early point, that if Council Member Genco is correct, and it rules that way that he hoped Council would consider an amendment to the code, to correct what is there so they could move forward. Council Member Genco agreed that is an option to consider, and that is one of the reasons the Village was considering a moratorium. Mayor Humpage clarified the Zoning-in-Process. Council Member Genco agreed, and she apologized that she had not read every pazagraph in the code sections until the item was to come before Council for a vote. She commented she was surprised that the Attorney's did not put that on the table and reseazch it, and clarify it. Mr. Lewis noted he could take blame for some of that, but that he did read it all, and he was completely awaze of what was there, and that he was sorry he was not persuasive enough to convince Council. He stated he is exactly satisfied that he is right with his interpretation of the law. Council Member Genco stated she did not feel 100% either. Mr. Lewis commented he was certainly willing to defer this item for a month, to try and straighten this out. Mayor Humpage asked if it would be the applicants desire to defer this for a month. Attorney Hawkins stated Council needed to make a motion, and have a second. He suggested there be a motion to defer, for the applicant to take into account all the issues that have been raised this evening, and for the Staff to review the issue Council Member Genco had raised regarding the code, and that they defer to a time certain. Council Member Genco stated defer to the next Council Meeting. Village Manager Couzzo clarified to the December Meeting. MOTION: Vice Mayor Watkins moved to defer this item to the December 8, 2005 Regular Council Meeting with the applicant taking into account all the issues that have been raised this evening, and for Staff to review the issue Council Member Genco had raised regarding the code; seconded by Council Member Genco; motion passed 4-0. 22